In a recent Eleventh Circuit Court of Appeals decision, the court held that the Transportation Security Administration (TSA) is exempt from the Rehabilitation Act in hiring decisions with regard to disability. In Castro v. Secretary of Homeland Security, 2006 WL 3755209 (11th Cir. 2006), the plaintiff filed a complaint against the Department of Homeland Security (DHS) for rejecting his job application due to his history of seizures.

Mr. Castro applied for employment with TSA as a lead transportation security screener in August 2002. TSA declined to hire Mr. Castro because he failed the required medical assessment. Mr. Castro sued DHS for violation of the Rehabilitation Act, alleging that TSA discriminated against him on the basis of his disability.

DHS moved to dismiss Mr. Castro’s action for failure to state a claim upon which relief can be granted. DHS argued that TSA was not bound by the Rehabilitation Act when Congress passed the Aviation and Transportation Security Act (ATSA) which mandated qualification standards for transportation security screeners be established by TSA.

The district court granted DHS’s motion, holding that Congress has exempted the job qualifications utilized by TSA from review under the Rehabilitation Act. The Eleventh Circuit affirmed the decision, holding that the plain language of the ATSA indicates that TSA need not take the requirements of the Rehabilitation Act into account when formulating hiring standards for screeners. Note 49 U.S.C. § 44935 states:

Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms and conditions of employment of Federal service for . . . individuals . . . to carry out the screening functions.

The Eleventh Circuit read the phrase “notwithstanding any other provision of law” as Congress’s indication that the statute containing that language is intended to take precedence over any preexisting or subsequently-enacted legislation on the same subject.

The court also noted that subsection (f) of the ATSA explicitly requires TSA to promulgate hiring standards that are inconsistent with the Rehabilitation Act’s prohibition against making hiring decisions based on physical disabilities. That section lists physical abilities that must be incorporated into TSA’s hiring criteria for security screeners. The court concluded that because Congress intended to exempt TSA from the contrary requirements of the Rehabilitation Act with respect to hiring of security screeners, it must affirm the district court decision and dismiss Mr. Castro’s claim.

In order to establish rights for TSA security screeners under the Rehabilitation Act, Congress will need to revise the current legislation. As the courts are currently viewing the ATSA as superseding the Rehabilitation Act, Congress must act in order to establish rights for disabled applicants for TSA screener positions and probably TSA screeners as well.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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